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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent
Date of Hearing: July 30, 2013
October 1, 2013
October 25, 2013
February 28, 2014
Actual Record Closed Date: March 19, 2014
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 30, 2013
Attorney — Student
Legal Intern — Student
CSE District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 1, 2013
ESQ., Attorney for Parents — Student
CSE-, District Representative — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 25, 2013
ESQ., Attorney, Legal Assistance Group — Student
Parent/Mother (Via Telephone) — Student
Special Education Program Director, New — Student
(Via Telephone) — Student
Special Education Teacher, (Via Telephone) — Student
B.C.B.A. ABA Coordinator, — Student
(Via Telephone) — Student
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2014
Attorney, Legal Assistance Group — Student
DR., Physician (Via Telephone) — Student
CSE District Representative — DOE
By Due Process Complaint dated July 12, 2013, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The Complaint alleges that the Student was denied a free appropriate public education (FAPE) because the District failed to recommend home-based Appilied Behavioral Analysis (ABA) therapy in his Individualized Education Program (IEP) for the 2013-2014 school year.
The timelines in this matter were extended to allow for witness availability and to allow the Impartial Hearing Officer (IHO) to render a decision consistent with due process. For each extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational wellbeing. There was no showing of any prejudice to the District. (IHO Exh. 1)
The parties submitted briefs in this case, after testimony and evidence were submitted. (Exhs. 2, 3)
FINDINGS OF FACT
The Student is Disorder, ). (155-156)
The Student . He (155-156) Academically . (Exh. L)
Behaviorally, the . (70-71, 109, Exhs. E, L,K, T) He will engage in such actions as . (109) He will (124-125, 159)
The Student is unable to stay redirection to do so. (Exh. L) Transitioning is extremely directions and dressing are a challenge. (72-73, Exh. V)
The Student requires frequent repetition and edible reinforcers to learn. (Exh. I) The Student requires home sessions to generalize skills that are learned in school. (Exh. I,
111) It takes the a skill. (Exh. I, 80-81, 160-161) He will regress if he does not receive services after school. (94-95)
The Student has been , where his progress has been slow. (Exh. W) Even with the home-based ABA services provided to the Student during the 2012-2013 school year, the Student’s progress was slow. (Exh. W)
A Committee on Special Education (CSE) meeting on April 15, 2013 resulted in a request by the parent for the Student’s home-based ABA services to continue. (Exh. I) There was no discussion of this issue. (28, 134)
The team discussed physical therapy, a BIP. (27-28) The parent then signed the Final Notice of Recommendation. (28)
For the current school year, the Student attends a 12 month program where he receives , and a . (Exhs. E, Q) This school provides the Student with ABA therapy. (111)
After the school day, the Student receives to generalize his skills. Initially, his therapy lasted for 8 hours per week. This was increased to 10 hours per week in approximately December to January, 2013-2014. (64, 67) The Student has been receiving this hours since 2008. (54-55) The therapist, Mr. coordinated his ABA program with the school’s program. (80-81) Mr. is not a BCBA. (96)
Mr. worked on IEP goals for the Student. (74, 85, Exh. K) He took data and kept logs documenting focus of the Student. (Exhs. M, N) He has been teaching the parent on how to work with the Student. (128) Progress has been noted in terms of the Student following directions, waiting skills, staying on task, and the Student’s (91-93, 130-131, Exh. L)
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012)
The District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Improvement Act (IDEA), and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or © caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The District be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
The parent contends that the District failed to provide the Student with a FAPE by failing to provide for home-based ABA services for the 2013-2014 school year. The record indicates that the Student progressed slowly in the 2012-2013 school year with the home-based ABA services that were requested here. . His actions include and . The Student is at this time. All the testimony from witnesses familiar with the Student supports the proposition that the home-based ABA services are needed for this Student. The District was not able to rebut the contentions of the parent witnesses in this connection. Though the Student’s includes ABA services, the record establishes that the Student’s issues are such that after-school services are needed to insure that progress continues and that there . All the witnesses that knew the Student testified to this effect. However, the District did not even consider home-based ABA services at the IEP meeting in April, 2013.
In this connection, it is noted that In T.P. v. Mamaroneck Union Free School District, 554 F.3d 247 (2d Cir. 2009), then Chief indicated that a school district must have an “open mind” as to the content of a student’s IEP at a CSE review. An SRO has also found that it is improper to eliminate home services without “adequate consideration or discussion at the meeting.” Application of a Student With a Disability, Appeal No. 08035.
The record shows that the District did not really consider the request for homebased services at the IEP meeting in April, 2013.
I find that the District’s decision to reduce the Student’s services without any clearly defined rationale was not reasonably calculated. Accordingly, I find that the District denied the Student a FAPE through its April, 2013 IEP. The parent prevails on the first criterion.
On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). Parents may not be held to certain requirements that Districts are held to such as teacher licenses or LRE requirements. Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2006). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address Joshua’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).
The record shows that the Student requires 10 extra hours of ABA services to continue the slow progress that he is . Progress has been noted in terms of the Student following directions, waiting skills, staying on task, and the Student’s The District contends that the addition of 10 extra hours of ABA is not consistent with the LRE requirements of the IDEA, but the caselaw is consistent in establishing that the LRE requirements are viewed in connection to requests for general education placements. P. v. Newington Bd. Of Educ., 546 F.3d 111 119-122 (2d. Cir. 2008). There is no contention here that the Student could be placed in a general education setting. Moreover, the Second Circuit has recently restated that the restrictiveness of a private placement is a factor in regard to the second criterion, it by no means is it dispositive. C.L. v. Scarsdale Union Free Sch. Dist., 12-1610-CV, 2014 WL 928906 (2d Cir. Mar. 11, 2014)
It should be pointed out that students can receive reimbursement for after school instruction per Carter. Application of a Child with a Disability, Appeal No. 07-040 (child with autism).
The District also contends that the parent’s program is not specifically tailored to the Student and is not designed to produce independence of the Student. I disagree. The record establishes that the home-based ABA program was created to meet the Student’s unique needs. The program is coordinated with the ABA program school and it is tied to the Student’s IEP goals. The program also is designed to support the Student’s independence by teaching him behavioral strategies. The Student will need to improve his behavior to be able to have any sort of independence later in life.
Accordingly, the parent prevails on the second criterion.
On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). . With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.
On this record, the parent has done all she has been requested to do. The parent actively participated in the CSE meeting for the Student. The District contends that the parent should have raised objections to the IEP at the IEP meeting. However, the record establishes that the parent did in fact raise the issue of home-based ABA at the IEP meeting. Moreover, there is no authority in this Circuit to support the notion that a parent waives a claim if s/he does not raise such claim at the IEP meeting. The parent prevails on the third criterion and is awarded reimbursement/payment for after school ABA services provided in the 2013-2014 school year.
ORDER
As a result of the foregoing, it is hereby ordered that the District is hereby required to pay up to 10 hours per week for after school ABA services provided to the Student for the 2013-2014 school year. Dated: March 31, 2013
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer MSL:gc
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due Process Complaint, 7/12/13, 2 pp. B IEP, 11/4/11, 21 pp. C IEP,6/13/12, 22 pp. D Resolution Agreement, 6/13/12, 1 pg. E IEP, 4/15/13, 12 pp. F Letter from New York Therapy, 7/23/13, 1 pg. G Letter, 5/1/13, 1 page H CV, 2 pages I Letter, 4/9/13, 1 page J Letter, 5/10/13, 2 pages K Student Progress Report, 3/14/13, 2 pages L Progress Report, 9/27/13, 2 pages M ABA Log Notes and Data Summaries, April through June 2013, 11 pages N Trial by Trial Graph, May and July 2013, 9 pages O Channing Data Sheet, 4 pages P Special Ed School Age Program, Record of SETS Services 9 pages Q Special Review Summary Sheet, 4/30/13, 1 page R School, 13/14, IEP Goals, 1 page S Related Service Progress Reports, 4/1/13, 1 page T Related Service Progress Reports 4/2/13, 1 page U Functional Analysis Screening Tool, 4/18/13, 1 page V School Annual Report, 3/18/13, 3 pages W School Progress Report for IEP Goals, 12/13, 4 pages X School IEP Goals Selection Worksheet, 3/4/13 2 pages Y Behavior Support Plan, 3/6/13, 4 pages Z , Pre-Vocational Assessment Tool, 3/6/13,
4 pages AA CV, 3 pages BB CV, 1 page CC Authorization for , 1 page DD Health Certificate Appraisal Form, 1 page
DEPARTMENT OF EDUCATION
1 IEP, 4/15/13, 18 pages 2 Final Notice, 4/15/13, 1 page 3 FBA, 4/15/13, 1 page 4 BIP, 4/15/13, 1 page
IMPARTIAL HEARING OFFICER
1. Timelines Notices, 7 pages
2. Brief of parent, 16 pages 3 Brief of District, 9 pages